Enforcement of Premarital Torts Against Community Property of Married Persons
It can be confusing for the public to understand how much liability does a married person faces when their spouse had a liability or tort owed before they married, and then a judgment is obtained against the tortfeasor. The judgment creditor can enforce that debt against the tortfeasor’s 50% of community property subject to the Enforcement of Judgment laws which protects some assets.
A premarital tort committed by a debtor prior to marriage can be enforced only as follows.
Enforcement against Premarital Separate Property. First, the debt once reduced to judgment can be enforced against the tort-feasor’s separate property.
In the case of deElche v. Jacobsen, 95 Wn.2d 237, 622 P.2d 835 (1980), the Court held that a separate tort debt must be first enforced against the separate property of the tort-feasor which is primarily liable. “If there is insufficient separate property, however, then the tort-feasor’s half interest in community personal liability shall first become liable, RCW 6.04,.040(1),
Enforcement against Community Personal Property. Second, if the debt cannot be satisfied in full by the tort-feasor’s separate property, then the judgment can be enforced against the tort-feasor’s ½ of Community Personal Property.
Enforcement against Community Real Property . Third , if the debt cannot be satisfied in full by the tort-feasor’s ½ share of Community Personal Property, then the judgment can be enforced against the tort-feasor’s ½ share of Community Real Property . By real, this means real estate essentially and homesteads. In deElche, the tortfeasor’s 50% interest in community personal property was sufficient to satisfy the judgment. 95 Wn.2d at 246 n.3.
In Keene vs Edie, 1431 Wn.2nd 822, 935 P.2d 588, 1997 our Washington Supreme Court in an En Banc decision extended the right to enforce the judgment against the tortfeasor’s interest in community real property.
RCW 26.16.200 3 year protection rule does not apply to torts, only “debts”.
RCW 26.16.200 does not protect against enforcement’s of liabilities (or torts) even if not reduced to judgment within three years of marriage because the tort is not deemed a “debt” .
The Keene court recognized the issue of “debts” vs. “torts” proclaiming: “ It is not necessary and we do not decide here anything concerning separate debts. Distinction can be made between debts and torts, and it is not necessary that the rules regarding them be parallel”.(Emphasis added, cites omitted, and citing deElche, 95 Wn.2d at 246 n.3). Thus, in Keene v. Edie, the actual 2 cases therein involved rape and molestation and held the judgment was enforceable against the tortfeasor’s 50% share of community property.
In In Re Diafos, 37 P.3rd 304 (2001)(Washington Court of Appeals, Div. 1) also held that our Supreme Court in Haley v. Highland , 142nd 135, 12 P.3rd 119 (2000) (En Banc case also), “..held that a judgment on premarital tortious conduct is not a debt under RCW 26,16.200 and therefore, the protections of the statute do not apply to the tortfeasor spouse. The court held that the judgment creditor could attach the defendant’s one-half interest in community personal property if his separate property was insufficient to satisfy the claim”. (Emphasis added). (Id. at 152). The Diafos case was based on a judgment arising out of what the court held “sounds in tort”.
Blacks Law Dictionary also defines a “Debt” as “A sum of money due by certain and express agreement. A specified sum of money owing to one person from another, including not only obligation of debtor to pay but right of creditor to receive and enforce payment”. Said Dictionary defines a “Liability” as “The word is a broad legal term. It has been referred to as the most comprehensive significance, including almost every character of harzard , or responsibility, absolute, contingent , or likely……”. 6th Edition.
This compares with a “Debt” in which the Statute can apply. See Watters v. Doud, 92 Wn.2d 317, 596 P.2d 280 (1979). If a debt is not reduced to judgment within 3 years of marriage, it is not enforceable against the community assets”. Id. At 321.
Personal and Real Property Protections Exist to Protect against Tort Judgment Enforcement. Even if a tort debt is enforceable against the property as set forth above, the judgment is still subject to the Enforcement of Judgments as set forth in RCW 6.15.010 on personal property and RCW 6.13.010 et seq with respect to real property. “If there is insufficient separate property, however, then the tort-feasor’s half interest in community personal liability shall first become liable, RCW 6.04,.040(1), subject of course to the exemptions in RCW Title 6, Enforcement of Judgments. See deElche, 95 Wn.2d at 246 (Emphasis added).
Homestead Protection Available: RCW 6.13.030 provides that the homestead exemption is the greater of $125,000 or the county median sale price of a single-family home in the preceding calendar year unless there was a judgment in favor of Washington State for failure to pay state income tax on benefits received while a resident of Washington from a pension or other retirement plan in which then there is no dollar limit to the homestead.
Exceptions to enforcement of a Homestead Exemption are set forth in RCW 6.13.080.
Bankruptcy Court Trustee Must Timely Object to Listed Exemptions. In general, a trustee in bankruptcy Court must object to any claimed exemption within 30 days of the 341 meeting or continuance thereof or waive said exemption objections.
Is the Tort Dischargeable in Bankruptcy and Thereby Not Enforceable?
Some tort claims are discharged in bankruptcy 11 U.S.C. 523, in particular subsection (6) for “willful and malicious injury by the debtor to another entity or to the property of another entity”. However, the tort claimant must be listed in bankruptcy so they receive proper notice and then the claimant must file a adversary lawsuit by the court’s deadline or else it can still be discharged (assuming other subsections do not apply).
Nontortfeasor’s Right to Reimbursement if tortfeasor spouse’s judgment enforced against their 50% of Community Property. Finally, if in fact the 50% of community real property interest is used to satisfy a separate tort judgment, the nontortfeasor spouse will obtain a right to reimbursement protected by and equitable lien, which, upon termination of the community relationship, gives to the nontortfeasor spouse as separate property the same amount as he or she would have received had the separate tort judgment not been satisfied out of community property. In Re Keene, 131 Wn.2nd n.6.
Practice Notes: Married persons should change bank accounts not listed in bankruptcy so that a non-dischargeable tort creditor cannot garnish as they will not know the location . Also, non-community personal assets and social security earnings should be placed into a separate account than one in which community earned wages are places so that they are not commingled. Then, use the community wages account first as much as possible and the social security separate account only when needed.
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